[295 U.S. 1, 3] Messrs. J. Crawford Biggs, Sol. Gen., of Washington, D.C., Chas. M. Blackmar, of Kansas City, Mo., and R. S. Collins, of Washington, D.C., for the United States.
Messrs. L. A. Liljeqvist, of Coquille, Or., and I. H. Van Winkle, of Salem, Or., for defendant.
-Mr. Justice STONE delivered the opinion of the Court.
This is an original suit brought by the United States against the state of Oregon to quiet title to 81,786 acres of unsurveyed lands in Harney county, Or. The lands lie within a meander line 105.36 miles in length. The line was surveyed principally by John H. Neal in 1895-1896, and approved by the Commissioner of the Land Office in 1897; the remainder has since been surveyed, and has been approved by the Commissioner. The meander line purports to mark the boundaries of lands underlying five bodies of water at the ordinary or mean high-water mark. They are Lake Malheur (47,670 acres), Mud Lake (1,466 acres), Harney Lake (29,562 acres), the Narrows (296 acres, connecting Lake Malheur with Mud Lake), and the Sand Reef (2,792 acres, connecting Mud Lake with Harney Lake). The five bodies of water extend from the extreme end of Lake Malheur on the east to the westerly side of Harney Lake, a distance of approximately thirty miles. Lake Malheur is shown by maps in evidence to be 16.66 miles in length and more than 6 miles in width. Mud Lake is a small body of water, a little over a mile in diameter. Harney Lake is similarly shown to be 8.57 miles long and approximately 5 miles wide. [295 U.S. 1, 6] The principal source of inflow to Lake Malheur, at all the times material to the present controversy, has been from the Silvies river on the north and the Donner und Blitzen river on the south. The source of inflow to Harney Lake is from Lake Malheur through the Narrows, thence through Mud Lake and the Sand Reef. Some water also flows into Harney Lake on the north from Silver Creek, a mountain stream, which is dry for part of the year. Harney Lake has no outlet.
By Executive Order of August 18, 1908, all of the land claimed by the United States in this suit was set apart as a bird reserve, known as the Lake Malheur Reservation, and has since been administered as such by the United States Bureau of Biological Survey, under the direction of the Department of Agriculture.
The state of Oregon was admitted to the Union on February 14, 1859 ( 11 Stat. 383). At that date the area within the meander line was a part of the public domain of the United States. No part of it has ever been disposed of, in terms, by any grant of the United States. Decision of the principal issues raised by the pleadings and proof turns on the question whether the area involved underlay navigable waters at the time of the admission of Oregon to statehood. If the waters were navigable in fact, title passed to the state upon her admission to the Union. Shively v. Bowlby, 152 U.S. 1 , 26-31, 14 S.Ct. 548; Scott v. Lattig, 227 U.S. 229, 242 , 243 S., 33 S.Ct. 242, 44 L.R.A.(N.S.) 107; State of Oklahoma v. Texas, 258 U.S. 574, 583 , 591 S., 42 S.Ct. 406. United States v. State of Utah, 283 U.S. 64, 75 , 51 S.Ct. 438. If the waters were nonnavigable, our decision must then turn on the question whether the title of the United States to the lands in question, or part of them, has passed to the state. This is asserted to be a consequence of the United States having parted with title to the uplands bordering on the meander line, by patents to private grantees, and by statutory grant to the state of school and indemnity lands in the act admitting Oregon to statehood. See United States v. Morrison, 240 U.S. 192 , 36 S.Ct. 326. The state contends [295 U.S. 1, 7] that the common-law rule, applied by this Court in Hardin v. Jordan, 140 U.S. 371 , 11 S.Ct. 808, that a conveyance of land bounded upon the waters of a nonnavigable lake carries by implications to the center of the lake, does not obtain in Oregon, especially in the case of lakes of the size of Malheur and Harney. It insists that grants by the United States of lands within the state, like those of a private individual, are to be construed in accordance with state law, and that by the common and statute law of Oregon a conveyance of the uplands bordering on a nonnavigable lake, by the owner of the lake bed to any grantee, vests title to the bed in the state. Other questions of minor importance will be considered as it is found necessary to deal with them in the course of the opinion.
The issues raised by the pleadings were referred to a special master, with the powers of a master in chancery, to take the evidence and report his findings of fact and conclusions of law, and to make recommendations to this Court for a decree. After hearing and considering voluminous testimony he has rendered his report, with findings of fact and conclusions of law and a proposed form of decree. He found that none of the waters within the meander line was navigable in fact and concluded that the state of Oregon had acquired no right, title, or interest in any part of the land lying within the meander line, save such as is incidental to the ownership of land acquired by it from patentees of the United States, fronting a distance of 159.67 chains on the meander line on either side of the westerly portion of the Narrows, designated on maps in evidence as Subdivision B (between the bridge and Mud Lake), and such as is incidental to its ownership of uplands acquired from grantees of the United States by patents bounding the granted lands upon the meander line fronting on the easterly side of Mud Lake, a distance of 72.31 chains. See Hardin v. Jordan, supra.
With reference to the land within the meander boundaries of Subdivision B of the Narrows, he found that the [295 U.S. 1, 8] United States, prior to the commencement of suit, had disposed of all its interest in the uplands bordering on the meander line on both sides, to patentees and as indemnity lands under the school land grant to Oregon. He also found that the Narrows had the character of a nonnavigable stream, and concluded that the United States had retained no interest in the land within the meander line boundary, since Rev. St. 2476 (43 USCA 931), applicable to grants of the United States, provides: '... In all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.'
The master accordingly recommended a decree adjudging that the state is owner in fee simple of the land lying within the meander line of Subdivision B of the Narrows, incidental to its ownership of patented uplands bordering on the meander line, and to a portion of the bed of Mud Lake fronting the riparian or littoral patented land of the state on Mud Lake, aggregating 8.99 per cent. of the total lake bed. The percentage was derived by determining the proportion which the length of the state's boundary on the meander line bears to the total meander line of the lake. It was further recommended that the state be adjudged to have no other right, title, or interest in any of the lands in suit.
He also made the following findings which have a bearing on the title of the United States to land within the meander line boundary of each of the five bodies of water.
Lake Malheur. He found that the United States, before suit, had disposed of 79.80 per cent. of the total frontage of the upland bordering on the meander line of Lake Malheur and had retained upland fronting on the meander line to the extent of the remaining 29.20 per cent. Of the 79. 80 per cent. disposed of, 1.34 per cent. was school lands, granted to Oregon and sold by it to private grantees, and 4.80 per cent. was indemnity land, listed to and similarly sold by the state [295 U.S. 1, 9] before action was brought. The remaining 73.66 per cent. had been patented directly to private grantees. As none of the owners of these lands is a party to the present suit, the master made no recommendation for a decree as to their interests in the land within the meander line.
The Narrows. As to subdivision A, the master found that the lands bordering on both sides comprised patented and indemnity lands which had been conveyed to individual owners, and that, as the Narrows is a nonnavigable stream, the United States, by virtue of Rev. St. 2476 (43 USCA 931), retained no interest in the land within the meander line, except in so far as it may have an easement through the entire division for the flow of water from Lake Malheur.
Mud Lake. The master found that the United States had retained no upland fronting on the meander line boundary. All except that now vested in Oregon, already referred to as having a frontage of 72.31 chains on the meander line boundary, is vested in private owners. Neither party has taken any exception to the findings, and, as the private owners are not parties to the present suit, the master made no recommendation for a decree with respect to their title or interest in the land within the meander boundary.
The Sand Reef. The master found that the United States, at the commencement of the suit, had retained uplands having 84.92 per cent. of the total frontage on the meander line boundary of the Sand Reef. Of the frontage disposed of, 4.90 per cent. is that acquired by individuals and the remaining 10.18 per cent. is school land acquired by Oregon. The claim of the state that it has title to the adjacent lands within the meander line, as incident to its ownership of the upland, was rejected by the special master because the survey of the uplands was approved subsequent to the Executive Order of August 18, 1908, setting aside the area in question as the Lake Malheur Reservation. Although the state has excepted to this finding, because the Proclamation antedated the effective date of the Migra- [295 U.S. 1, 10] tory Bird Treaty Act, approved July 3, 1918, c. 128, 40 Stat. 755 (16 USCA 703 et seq.), we conclude that the master's determination was correct. See United States v. Midwest Oil Co., 236 U.S. 459 , 469-475, 35 S.Ct. 309; United States v. Morrison, 240 U.S. 192, 210 , 36 S.Ct. 326; see, also, the Act for the Protection of Game Birds of June 28, 1906, c. 3565, 34 Stat. 536 (see 18 USCA 145 and note).
Harney Lake. The master found that at the time of commencement of the suit the United States had retained uplands bordering on 87.91 per cent. of the meander line boundary of Harney Lake and that it had disposed of lands having a frontage of 12.09 per cent. Of this, 1.10 per cent. represents the frontage of land patented to a private individual. The remaining 10.99 per cent represents frontage of school lands, of which those having a frontage of 5.87 per cent. were acquired by Oregon upon surveys approved after the Executive Order of August 18, 1908. For reasons already stated, we conclude that the master correctly determined that the state acquired no interest in the lands within the meander line upon this frontage, as incident to its ownership of the upland.
The master found that the remaining school lands, having a frontage of 5.12 per cent., passed to Oregon under a survey approved before the Executive Order, but he rejected the claim of Oregon to any interest in the adjacent land within the meander line. This was done because he thought the rule of Hardin v. Jordan, supra, was not applicable to school and indemnity lands surveyed to the border of nonnavigable waters, and because the state had claimed and received lieu lands elsewhere for a deficiency in granted school lands, which deficiency lay within the meander line. We do not pass upon the first ground, but agree that the acceptance by the state of lands elsewhere, in lieu of lands lying within the meander line adjacent to the granted uplands, was such a practical construction of the boundary, and necessarily involved such a relinquishment of any interest in the [295 U.S. 1, 11] adjacent lands as an incident to the grant of uplands, as to preclude the assertion of that claim here.
The master accordingly concluded that the United States retained the entire interest in the area within the meander line of Harney Lake, except such interest as was acquired by the individual patentee of upland. As he was not a party to the suit, the master made no recommendation with respect to a decree as to his interest.
Stable Lands within the Meander Line. The Special Master found that there were stable lands, consisting of islands and promontories within the meander line, aggregating 9,328.8 acres at the mean water surface elevation of 4,093 feet above sea level, the title to which he found to be in the United States.